State of Missouri v. Gary Andrews, Jr.

In the Missouri Court of Appeals Eastern District DIVISION ONE STATE OF MISSOURI, ) No. ED108691 ) Appellant, ) ) Appeal from the Circuit Court ) of the City of St. Louis vs. ) Cause No. 1922-CR01066-01 ) GARY ANDREWS, JR., ) Honorable David C. Mason ) Respondent. ) Filed: February 23. 2021

OPINION

I. Introduction

The State of Missouri appeals the trial court’s order granting Gary Andrews’s (“Defendant”) motion to dismiss the count charging him with possession of a controlled substance on double jeopardy grounds. The court found that the State was barred from continuing to prosecute that count after Defendant pleaded guilty to another count in the same indictment, charging him with unlawful use of a weapon by possessing a firearm while also in possession of a controlled substance. The State raises two points on appeal. In Point I, the State contends it was premature to dismiss the possession count on double jeopardy grounds because Defendant had not yet been convicted of and subject to sentencing on that count. In Point II, the State contends there was no double jeopardy violation because these were two separate offenses that the legislature intended to be punished cumulatively. We affirm.

II. Factual and Procedural Background

Defendant was charged in a single indictment with multiple counts stemming from the same incident. Count I charged him with possession of a controlled substance (Fentanyl) under § 579.015,1 Count II charged him with unlawful use of a weapon by possessing a firearm while also in possession of the same controlled substance (Fentanyl) under § 571.030(11), and Counts III through V charged him with other offenses not relevant to this appeal. At Defendant’s request, the matter was set for a plea hearing. Prior to that hearing, Defendant filed a motion to dismiss, arguing that possession of a controlled substance (“possession”) is an included offense of unlawful use of a weapon by possessing a firearm while also in possession of a controlled substance (“UUW-possession”) and, therefore, Counts I and II were the “same offense” for double jeopardy purposes. Defendant contended the State was precluded from prosecuting and cumulatively punishing him for both of those offenses. He requested that the trial court either dismiss Count I or require the State to elect to pursue only Count I or only Count II.

At the plea hearing, the trial court first heard arguments on the motion to dismiss. Defendant stated that he did not intend to plead to both Counts I and II because they were the “same offense” for double jeopardy purposes. The parties debated whether possession was included in UUW-possession, and the trial court indicated its belief that there would be a double jeopardy problem if Defendant pleaded to both and warned that Defendant could not be sentenced on both. The trial court suggested the State could elect which one to impose punishment on at sentencing or it could elect before the plea hearing to proceed with just one of the offenses, rather than let Defendant decide. The State maintained that these were separate offenses and indicated it would proceed with all counts as charged. At that point, Defendant said

1 All statutory references are to Mo. Rev. Stat. Cum. Supp. 2019, unless otherwise noted.

he would plead guilty only to the UUW-possession count and the other unrelated charges and leave the possession count “open.” The State did not object to disposing of these offenses separately or to Defendant’s particular choice to plead only to UUW-possession, nor did it seek to withdraw the plea agreement it had entered with Defendant, which was premised on him pleading to all the charges in the indictment.

The trial court then proceeded with the plea hearing and accepted Defendant’s pleas to Counts II through V, also without any objection from the State, and sentencing followed directly thereafter. The State asked the trial court to sentence Defendant on Count I, which was denied because he had not pleaded to that count, but the State did not object to sentencing Defendant on the UUW-possession count. In fact, the State indicated it would lower its sentencing recommendation from five to four years imprisonment since Defendant did not plead to the possession count, as originally contemplated in the plea agreement. The trial court sentenced him to a total of four years in prison on Counts II to V, the execution of which was suspended, and Defendant was placed on probation. Count I remained pending.

Thereafter, Defendant refiled the motion to dismiss Count I on double jeopardy grounds, pointing out that because he had been convicted by plea of guilty on the greater offense of UUW-possession, he could not be prosecuted for the included offense of possession, much less punished for that offense a second time. The State filed a memorandum in opposition, arguing the legislature intended these to be separate offenses subject to cumulative punishment and thus there was no double jeopardy problem. It did not argue that dismissal would be premature. The court granted Defendant’s motion and dismissed Count I. This appeal follows.

III. Standard of Review

We review double jeopardy claims de novo. State v. Daws, 311 S.W.3d 806, 808 (Mo. banc 2010).

IV. Discussion

The double jeopardy clause of the Fifth Amendment to the United States Constitution guarantees that no person shall “be subject for the same offense to be twice put in jeopardy of life and limb.” U.S. CONST. amend. V. This clause provides two distinct protections for criminal defendants: (1) protection from successive prosecutions for the same offense after either an acquittal or a conviction and (2) protection from multiple punishments for the same offense. Daws, 311 S.W.3d at 808. The double jeopardy analysis is the same whether the protection sought is from successive prosecution or multiple punishment. State v. Blackman, 968 S.W.2d 138, 140 (Mo. banc 1998); see also State v. Flenoy, 968 S.W.2d 141, 144 (Mo. banc 1998). Although the substantive analysis is the same, the distinction between the successive prosecution and multiple punishment protection is important because “it implicates at what stage in a criminal proceeding a defendant can raise a double jeopardy challenge.” State v. Thompson, 581 S.W.3d 632, 636 (Mo. App. W.D. 2019). Thus, the State’s first point on appeal asserts that dismissal of Count I was premature, construing Defendant’s challenge as one based on the protection against multiple punishments. We will return to this point after addressing the substantive double jeopardy analysis required by the State’s second point on appeal, in which the State contends these were two separate offenses that the legislature intended to be punished cumulatively.

A. Merits of Double Jeopardy Challenge

The essential question in any double jeopardy analysis is “whether there is clear legislative intent to punish a defendant cumulatively.” Blackman, 968 S.W.2d at 140 (relying on *5 Missouri v. Hunter, 459 U.S. 359, 367 (1983) and its progeny). To determine legislative intent, we must first examine whether the particular statutes at issue “specifically authorize cumulative punishment.” State v. Horton, 325 S.W.3d 474, 478 (Mo. App. E.D. 2010). If those statutes are silent on the issue of cumulative punishment, then we turn to § 556.041, which expresses the legislature’s general intent to impose cumulative punishments unless the offenses fall into one of the exceptions therein.2 Id.; see also State v. McTush, 827 S.W.2d 184, 187–88 (Mo. banc 1992). The trial court here concluded that the first exception, for included offenses as defined in § 556.046.1(1), applies in this case. An offense is “included” when it “is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” § 556.046.1(1).3 Section 556.046.1(1) essentially codifies the same elements test announced in Blockburger v. United States, 284 U.S. 299, 304 (1932). See McTush, 827 S.W.2d at 188.

Specific Authorization for Cumulative Punishment

Our first task in determining legislative intent is to examine §§ 579.015 and 571.030.1(3) for authorization of cumulative punishments. See Blackman, 968 S.W.3d at 140; Horton, 325 S.W.3d at 478; Hunter, 459 U.S. at 367. The State argues that “the plain language of the statute for unlawful use of a weapon indicates that the punishment is intended to be in addition to the

2 Section 556.041 provides: When the same conduct of a person may establish the commission of more than one offense he or she may be prosecuted for each such offense. Such person may not, however, be convicted of more than one offense if: (1) One offense is included in the other, as defined in section 556.046; or (2) Inconsistent findings of fact are required to establish the commission of the offenses; or (3) The offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or (4) The offense is defined as a continuing course of conduct and the person's course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.

3 An offense is also “included” if it is “specifically denominated by statute as a lesser degree of the offense charged” or “consists of an attempt to commit the offense charged or to commit an offense otherwise included therein.” § 556.046.1(2) and (3). Defendant does not argue that either of these definitions are applicable here.

punishment for the crime or conviction of possession of a controlled substance.” We disagree. The statutes at issue here make no mention of cumulative punishment: § 579.015.1 states that “[a] person commits the offense of possession of a controlled substance if he or she knowingly possesses a controlled substance,” and § 571.030.1(11) states that “[a] person commits the offense of unlawful use of weapons . . . if he or she knowingly . . . [p]ossesses a firearm while also knowingly in possession of a controlled substance that is sufficient for a felony violation of section 579.015.” The State argues that because the legislature was obviously aware that possession of controlled substances was already a crime, its failure to expressly prohibit additional punishment for UUW-possession is indicative of its intent to permit multiple punishment. The State relies on the phrase “while also” in § 571.030.1(11), arguing that is synonymous with “in addition to.” We agree that either phrase when used in reference to punishment would constitute an express authorization of multiple punishment. See, e.g., State v. Dudley, 303 S.W.3d 203, 208 (Mo. App. W.D. 2010). But in § 571.030.1(11), “while also” is used only in reference to guilt: one commits the offense when he possesses a firearm “while also” committing an offense under § 579.015.

The fact that guilt for one offense is predicated on commission of another offense is not itself sufficient indication of legislative intent to authorize cumulative punishment. Our courts’ interpretation of the felony-murder statute and the armed criminal action statute--both of which are also crimes for which guilt is predicated on the commission of another crime--is instructive. Since its enactment in 1976, the armed criminal action statute has always contained explicit language providing that punishment for armed criminal action “shall be in addition to” any *7 punishment for the predicate crime committed with a weapon. See § 571.015.4 The Supreme Court of Missouri has concluded this language “clearly and unambiguously” expressed the legislature’s “unmistakable intent” to permit multiple punishments for armed criminal action and the predicate crime. Sours v. State, 603 S.W.2d 592, 598–99 (Mo. banc 1980) (citing § 559.225 Mo. Rev. Stat. Cum. Supp. 1976).

The felony-murder statute, on the other hand, did not always contain a specific authorization of cumulative punishment. Prior to 1984, the felony-murder statute stated only that a killing “committed in the perpetration of or in the attempt to perpetrate” certain specified other offenses was first-degree murder. See § 565.003 Mo. Rev. Stat. Cum. Supp. 1977.5 Like the statutes before us now, the felony-murder statute at that time made no mention of cumulative punishment. The Supreme Court of Missouri concluded that the statute did “not contain a legislative intent or directive that a defendant may be separately punished” and “it cannot be demonstrated that the Missouri legislature intended to allow a court to separately punish a defendant both for felony-murder and the underlying felony.” State v. Olds, 603 S.W.2d 501, 509-10 (Mo. banc 1980).6 This Court pointed out that this version of the felony-murder statute did not contain language similar to what was used in the armed criminal action statute and concluded that “legislative silence can hardly be said to be evidence of any legislative intent or directive to impose double punishment.” State v. Evans, 660 S.W.2d 433, 435 (Mo. App. E.D.

4 Before armed criminal action was itself a felony offense, the use of a weapon during commission of a felony simply enhanced the defendant’s sentence. See State v. Evans, 455 S.W.3d 452, 458 (Mo. App. E.D. 2014) (discussing legislative history of armed criminal action).

5 Section 565.003 read as follows: “Any person who unlawfully kills another human being without a premeditated intent to cause the death of a particular individual is guilty of the offense of first degree murder if the killing was committed in the perpetration of or in the attempt to perpetrate arson, rape, robbery, burglary, or kidnapping.”

6 Olds was abrogated on other grounds by State v. Clark, 652 S.W.2d 123 (Mo. banc 1983), and superseded by the later version of the felony-murder statute, as recognized in Jones v. Thomas, 491 U.S. 376, 379 (1989).

1983). In 1984, the legislature rewrote the felony-murder statute and added the exact same language it had used in the armed criminal action statute, expressly stating that punishment for felony-murder “shall be in addition to the punishment for commission of a related felony or attempted felony, other than murder or manslaughter.” § 565.021.1(2). Our courts have repeatedly recognized that this language specifically authorizes cumulative punishment for felony-murder and the underlying felony. See, e.g., State v. Coody, 867 S.W.2d 661, 666 (Mo. App. S.D. 1993); Dudley, 303 S.W.3d at 208. In other words, until the statute included language affirmatively permitting multiple punishments, our courts could not find a clear legislative intent solely from the fact that guilt for felony-murder was predicated on the commission of another crime.7

Sections 579.015 and 571.030.1(3) contain no language relating to multiple punishments. We cannot read silence on the matter of punishment as a directive to permit cumulative punishment for these two crimes. See Evans, 660 S.W.2d at 435. In fact, if anything, silence on the matter in the face of the above jurisprudence regarding how to signal legislative intent to impose cumulative punishment--about which we presume the legislature was aware--indicates a legislative intent not to authorize multiple punishment. See generally State v. Prince, 311 S.W.3d 327, 335 (Mo. App. W.D. 2010); see also State v. Wright, 484 S.W.3d 817, 821 (Mo. App. E.D. 2015). In other words, the legislature knew when it enacted § 571.030.1(11) in 2014 that our courts would be looking for some language like that used in the felony-murder and armed criminal action statutes as an indication that it intended to cumulatively punish UUW-possession

7 The State cites an Arkansas case for the opposite proposition. In Rowbottom v. State, the Supreme Court of Arkansas held that the legislature’s express reference to the drug possession statute in the statute criminalizing simultaneous drug and gun possession was itself a sufficient indication that the legislature intended punishment for those two crimes to be cumulative. 13 S.W.3d 904, 908 (Ark. 2000). That case is not binding precedent in Missouri, nor is it persuasive authority given that our courts require a more explicit reference to punishment to signal legislative intent regarding cumulative punishment.

and possession; it knew that simply predicating guilt for one offense on the commission of another would not signal a clear intent to authorize cumulative punishment for those crimes; and it knew that its silence on the matter of punishment would not be construed as authorization of multiple punishments. Yet, it made no mention of cumulative punishment.

For the same reason, we find no merit in the State’s argument that the legislature’s classification of these crimes is indicative of its intent that they be cumulatively punished. The State argues that when the legislature criminalized the simultaneous possession of guns and drugs and classified that offense as Class E felony--which is lower than the Class D felony of possessing only drugs--it did so with the intention that the offender would be punished for both crimes and, thereby, subject to both ranges of punishment. That way, the argument goes, ultimately the person with both drugs and guns will rightly be subject to more punishment than a person with only drugs. Any other interpretation of the legislature's intent, the State insists, would lead to absurd results the legislature did not intend, namely “rewarding” someone with both drugs and guns by subjecting them to a maximum sentence of only four years in prison, while someone with drugs alone is subject to a maximum sentence of seven years in prison. The State claims our interpretation also renders § 571.030.1(3) useless, asserting that no prosecutor would charge a person with both drugs and guns under that statute that requires more proof, but carries a lighter sentence. We disagree that classifying the seemingly more serious offense lower than its predicate crime is any indication--much less the requisite clear indication--of the legislature’s intent to specifically authorize cumulative punishment for those crimes. Moreover, the legislature would have been aware that such a surreptitious approach to addressing *10 cumulative punishment would not be consistent with the above jurisprudence regarding how to clearly indicate that intent.8

The State is certainly correct that the legislature is free to use whatever language it wants to signal its intent. We do not mean to suggest the only language that could clearly indicate a legislative intent to specifically authorize cumulative punishment is that used in the armed criminal action and felony-murder statutes. But in §§ 579.015 and 571.030.1(11), there is no language that can reasonably be said to clearly indicate such an intent. If that was, in fact, the legislature’s intent, then it is free to amend the statute to clearly say so. But this Court is not at liberty to engage in that legislative function and we must apply the statute as written. See generally State v. Jones, 596 S.W.3d 168, 176–77 (Mo. App. E.D. 2020). As written, the specific statutes under which Defendant was charged are silent on the matter of cumulative punishment. Thus, we turn to § 556.041, which expresses the legislature’s general intent that a person may not be convicted of more than one offense if “one offense is included in the other, as defined in section 556.046.” § 556.041(1). The only relevant definition here is set out in § 556.046.1(1), most commonly known as the “same elements” or Blockburger test.

Same Elements Test

Application of the same elements test is straightforward: one offense is “included” in another when it “is established by proof of the same or less than all the facts required to establish” the other offense. § 556.046.1(1); see also McTush, 827 S.W.2d at 187–88. Under this

8 We note that at the time the General Assembly added subsection (11) to § 571.030.1, it did not actually provide any felony classification for that offense. See § 571.030 Mo. Rev. Stat. Cum. Supp. 2014. Therefore, it is not at all clear what sentencing range the legislature intended for UUW-possession at that point, much less whether it intended for it to be higher or lower than the sentencing range for possession. The legislature corrected this apparent oversight in 2016, at which point it made subsection (11) a Class E felony. See § 571.030.8(1). Class E felonies are punishable by a term of imprisonment up to four years. § 558.011.1(5). And possession of a controlled substance is a Class D felony, which carries a maximum punishment of seven years imprisonment. § 558.011.1(4); see also § 579.015.2.

test, courts are to compare only the statutory elements without regard to the particular manner in which the offense is charged. State v. Hardin, 429 S.W.3d 417, 422 (Mo. banc 2014). In other words, if the statutory elements of the offense of UUW-possession include all the legal and factual elements of the offense of possession, then possession is included in the offense of UUW-possession. And it clearly does: commission of all of the elements of the offense of possession under § 579.015 is an explicit and necessary element of the offense of UUW-possession under § 571.030.1(11). Because it is not possible to commit UUW-possession without also committing possession, possession is a “lesser-included” offense of the “greater” offense UUW-possession. See State v. Wright, 608 S.W.3d 790, 795 (Mo. App. E.D. 2020).9

The State disagrees, arguing that it is possible to commit the offense of unlawful use of a weapon offense in many other ways, noting the other ten subsections of § 571.030.1(1)-(10).10

9 Of course, by “greater” and “lesser-included” courts mean only to distinguish the number of elements in each offense. This nomenclature has no relation to the felony classification of the offense. Nor does classification have any bearing on whether one offense is included in another under the same elements test. Thus, we are not persuaded by the State’s suggestion that UUW-possession cannot be deemed a greater offense than possession because it has a lower felony classification.

10 In its entirety, § 571.030.1 states: A person commits the offense of unlawful use of weapons, except as otherwise provided by sections 571.101 to 571.121, if he or she knowingly: (1) Carries concealed upon or about his or her person a knife, a firearm, a blackjack or any other weapon readily capable of lethal use into any area where firearms are restricted under section 571.107; or (2) Sets a spring gun; or (3) Discharges or shoots a firearm into a dwelling house, a railroad train, boat, aircraft, or motor vehicle as defined in section 302.010, or any building or structure used for the assembling of people; or (4) Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner; or (5) Has a firearm or projectile weapon readily capable of lethal use on his or her person, while he or she is intoxicated, and handles or otherwise uses such firearm or projectile weapon in either a negligent or unlawful manner or discharges such firearm or projectile weapon unless acting in self- defense; or (6) Discharges a firearm within one hundred yards of any occupied schoolhouse, courthouse, or church building; or (7) Discharges or shoots a firearm at a mark, at any object, or at random, on, along or across a public highway or discharges or shoots a firearm into any outbuilding; or (8) Carries a firearm or any other weapon readily capable of lethal use into any church or place where people have assembled for worship, or into any election precinct on any election day, or into

Because courts are to compare only the statutory elements of the offense without reference to how the offense was charged, the State asserts it is improper to consider only the particular UUW subsection under which Defendant was charged. Instead, it contends, we must consider the entirety of § 571.030.1, like the Supreme Court of Missouri did when considering whether the offense of violating an order of protection was included in the offense of aggravated stalking in Hardin. See 429 S.W.3d at 423 (citing § 455.085 Rev. Mo. Stat. 2000 and § 565.225.3 Mo. Rev. Stat. Cum. Supp 2009, respectively). In Hardin, the Supreme Court concluded that violation of a protective order was only one of five alternative “aggravators” that elevated the offense stalking in § 565.225.2 to the offense of aggravated stalking in § 565.225.3. Id.11 Though the defendant had been charged with aggravated stalking based on violation of a protective order, the Court held that it was possible under the statute to commit the crime in four other ways. Id. The Court found that to focus on the particular aggravator used in the charging document would violate the “indictment-based application” of the same elements test, which “has been expressly rejected.”

any building owned or occupied by any agency of the federal government, state government, or political subdivision thereof; or (9) Discharges or shoots a firearm at or from a motor vehicle, as defined in section 301.010, discharges or shoots a firearm at any person, or at any other motor vehicle, or at any building or habitable structure, unless the person was lawfully acting in self-defense; or (10) Carries a firearm, whether loaded or unloaded, or any other weapon readily capable of lethal use into any school, onto any school bus, or onto the premises of any function or activity sponsored or sanctioned by school officials or the district school board; or (11) Possesses a firearm while also knowingly in possession of a controlled substance that is sufficient for a felony violation of section 579.015.

11 At the time, § 565.225.3 provided: A person commits the crime of aggravated stalking if he or she purposely, through his or her course of conduct, harasses or follows with the intent of harassing another person, and: (1) Makes a credible threat; or (2) At least one of the acts constituting the course of conduct is in violation of an order of protection and the person has received actual notice of such order; or (3) At least one of the actions constituting the course of conduct is in violation of a condition of probation, parole, pretrial release, or release on bond pending appeal; or (4) At any time during the course of conduct, the other person is seventeen years of age or younger and the person harassing the other person is twenty-one years of age or older; or (5) He or she has previously pleaded guilty to or been found guilty of domestic assault, violation of an order of protection, or any other crime where the other person was the victim.

Id. at 424 (citing State v. Smith, 592 S.W.2d 165, 166 (Mo. banc 1979)). Therefore, based solely on the statutory elements without regard to how the offense was charged, the Court concluded violating an order of protection was not an included offense of aggravated stalking. Id.

The aggravators discussed in Hardin were not in and of themselves offenses, but rather set out additional alternative elements the State could add to other elements to constitute the singular offense of aggravated stalking under § 565.225.3. In contrast, the UUW statute sets out “multiple offenses pertaining to the unlawful use of a weapon” which are simply “combined in” § 571.030.1. State v. Couts, 133 S.W.3d 52, 55 n.5 (Mo. banc 2004) (emphasis added). Each enumerated subsection (1) through (11) of § 571.030.1 constitutes one of those multiple offenses, each with a particular felony classification. See § 571.030.8. While each subsection represents one way in which a weapon can be used unlawfully, each of those ways is actually an offense in and of itself in the same way it would be if it were set out in a separate section of the criminal code. The subsections are not alternative elements of or ways to commit a crime, they are the crimes.

Hardin does not require that we compare the statutory elements of all eleven of those offenses to the statutory elements of possession to determine if possession is an included offense. Rather, as our courts have routinely done when applying the same elements test to one of the multiple offenses pertaining to the unlawful use of a weapon, we need consider only the statutory elements of the relevant subsection of § 571.030.1. See, e.g., Bates v. State, 421 S.W.3d 547, 551 (Mo. App. E.D. 2014) (comparing elements in § 571.030.1(3) with first-degree assault statute); Yates v. State, 158 S.W.3d 798, 801-02 (Mo. App. E.D. 2005) (comparing elements in § 571.030.1(3) with elements in § 571.030.1(9) and concluding they are “separate offenses”); State v. Alexander, 505 S.W.3d 384, 398 (Mo. App. E.D. 2016) (comparing elements in § *14 571.030.1(9) with first-degree murder statute); State v. Pollock, 738 S.W.2d 531, 533 (Mo. App. W.D. 1987) (comparing elements in § 571.030.1(1) with unlawful possession of a concealable firearm statute). Naturally, to determine which subsection is relevant in any given case, a court must refer to the indictment to determine which offense is charged, but that does not constitute an improper indictment-based application of the same elements test.

The comparison of the statutory elements of the two offenses in this case demonstrates that the offense of possession under § 579.015 is included in the offense of UUW-possession under § 571.030.1(11). Thus, according to the general intent of the legislature expressed in §§ 556.041(1) and 556.046.1(1), the two crimes cannot be punished cumulatively.12

Point II is denied. B. Timing of Double Jeopardy Challenge

We return now to the State’s contention that it was premature for the trial court to dismiss the possession count prior to being sentenced on that count because, until then, Defendant was not in jeopardy of multiple punishments. Defendant counters that he was not seeking protection only from cumulative punishment of these two offenses, but also from successive prosecution for the possession count based on his previous conviction for UUW-possession. Therefore, he argues, the pretrial dismissal to prevent continued prosecution of possession was proper. We agree with Defendant.

12 The State contends that because each statute addresses a separate harm--drugs in § 579.015 and unlawful use of weapons in § 571.030--“this Court can presume the legislature intended separate punishments.” The State is essentially asking us to disregard the results of the same elements test, which informs us that the legislature did not intend cumulative punishment for these offenses because one is included in the other. The State’s citation to Albernaz v. United States, 450 U.S. 333 (1981), is misplaced. In Albernaz, the Court applied the same elements test under Blockburger, concluding that the two offenses at issue were “unequivocally” separate offenses and therefore Congress intended them to be punished cumulatively. 450 U.S. at 338-39. The Court then stated that this conclusion was “reinforced” by the fact that the two statutes were “directed to separate evils.” Id. at 343 (emphasis added). The Court did not, as the State’s citation suggests, rely on a presumption about what Congress intended based on these separate evils.

It is well-settled that if a defendant is convicted or acquitted of an offense in one proceeding, the double jeopardy clause bars the State from prosecuting him for either a greater or lesser-included offense in a subsequent proceeding. See generally Brown v. Ohio, 432 U.S. 161, 168-69 (1977). The successive prosecution protection provides the defendant the benefit of finality and prevents the State from overreaching, thereby “exposing him to continued embarrassment, anxiety, and expense, while increasing the risk of an erroneous conviction or an impermissibly enhanced sentence” in a second prosecution. Ohio v. Johnson, 467 U.S. 493, 498– 99 (1984). The State is not, however, barred from charging a greater and a lesser-included offense in the same indictment. See id. at 500. When those charges are prosecuted and resolved simultaneously in the same proceeding, there is no double jeopardy problem unless and until the defendant is convicted and subject to sentencing for those two offenses. Id.; see also Thompson, 581 S.W.3d at 636. This is easily understood: prior to sentencing, there is neither a multiple punishment problem because no punishment has been imposed nor a successive prosecution problem because no prior conviction or acquittal exists.

The State contends that a defendant cannot create a successive prosecution double jeopardy problem simply by pleading guilty to one of multiple offenses charged in a single indictment. We agree that, according to Johnson and its progeny, when the defendant pleads guilty to the lesser-included offense over the State’s objection, the State is not barred by double jeopardy from continuing prosecution of the remaining greater offense. See Johnson, 467 U.S. at 501-02. In that scenario, the defendant can only assert a multiple punishment double jeopardy challenge, if and when he is subject to sentencing for both. See id. at 500. But unlike the defendant in Johnson--and its progeny and all of the other state and federal cases on this topic revealed by our research--Defendant pleaded guilty to the greater offense of UUW-possession, *16 leaving the lesser-included offense of possession pending.13 This is highly unusual and was obviously motivated by the fact that UUW-possession has a lower sentencing range than possession. And, although these offenses were charged in the same indictment, the State here--unlike in Johnson--did nothing to prevent separate disposition of them. For the following reasons, we do not believe Johnson requires that the State be permitted to continue prosecution under these unique circumstances.

In Johnson, the State charged the defendant with multiple offenses in a single indictment, and the defendant pleaded, over the State’s objection, to only the lesser-included offenses and then sought to have the remaining greater offenses dismissed. Id. at 494. The Supreme Court explained that the concerns of “finality and prevention of prosecutorial overreaching” inherent in the double jeopardy clause’s protection against successive prosecution were not implicated in this scenario:

No interest of [the defendant] protected by the Double Jeopardy Clause is implicated by continuing prosecution on the remaining charges brought in the indictment. Here [the defendant] offered only to resolve part of the charges against him, while the State objected to disposing of any of the counts against [the defendant] without a trial. [The defendant] has not been exposed to conviction on the charges to which he pleaded not guilty, nor has the State had the opportunity to marshal its evidence and resources more than once or to hone its presentation of its case through a trial. The acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending, moreover, has none of the implications of an “implied acquittal” which results from a verdict convicting a defendant on lesser included offenses rendered by a jury charged to consider both greater and lesser included offenses. There simply has been none of the

13 We disagree with the State’s proposition that Johnson mandates reversal here regardless of the sequence of events. The State cites from the following passage: Respondent's argument is apparently based on the assumption that trial proceedings, like amoebae, are capable of being infinitely subdivided, so that a determination of guilt and punishment on one count of a multicount indictment immediately raises a double jeopardy bar to continued prosecution on any remaining counts that are greater or lesser included offenses of the charge just concluded. We have never held that, and decline to hold it now. 467 U.S. at 501 (emphasis added). It is not clear that by declining to make that broad pronouncement, the Court meant for its actual holding--“We now reverse the judgment of the Supreme Court of Ohio and hold that prosecuting [the defendant] on the two more serious charges would not constitute the type of ‘multiple prosecution’ prohibited by the Double Jeopardy Clause”--to apply beyond the facts of the case before it. Id. at 494.

governmental overreaching that double jeopardy is supposed to prevent. On the other hand, ending prosecution now would deny the State its right to one full and fair opportunity to convict those who have violated its laws.

Id. at 501–02 (internal citations omitted). The Court said the defendant had attempted to direct “separate disposition of counts in the same indictment where no more than one trial of the offenses charged was ever contemplated” by the State. Id. at 502. It also noted that double jeopardy protections were inapplicable because “the State has made no effort to prosecute the charges seriatim,” meaning one by one. Id. at 500, n.9 (rejecting the defendant’s alternative collateral estoppel argument). The Court concluded that a defendant is not permitted to use double jeopardy “as a sword to prevent the State from completing its prosecution on the remaining charges.” Id. at 502; see also State v. Bally, 869 S.W.2d 777, 780 (Mo. App. W.D. 1994). Thus, the State was permitted to continue prosecution of the greater offenses. Johnson, 467 U.S. at 502.

In Johnson, the Court was concerned that discontinuing the prosecution where the State had steadfastly maintained its intention to pursue one trial of all the charged offenses would deny the State its one constitutionally-permissible opportunity to convict the defendant for violating its laws. But here, the State abandoned its pursuit of one trial for all the charged offenses in this indictment when it took no action to prevent separate dispositions of them. The State lodged no objection when Defendant stated his intent to plead only to either UUW-possession or possession. It declined the trial court’s invitation to elect which one to pursue, voiced no objection to Defendant’s selection of the UUW-possession count, and did not seek to withdraw the plea agreement, even though it was based on a plea to all the charges. The State did not object to the court’s acceptance of the Defendant’s plea to only UUW-possession or to him being *18 sentenced on that count; in fact, it adjusted its sentencing recommendation to reflect that he had pleaded guilty to fewer than all of the charges.

Thus, unlike in Johnson, it was not the defendant’s attempt to use double jeopardy as a sword that disrupted the government’s “one full and fair opportunity,” it was the State’s acquiescence to resolution of these offenses “seriatim.” Id. at 502, 500, n.9. As a result, the double jeopardy concerns inherent in any successive prosecution--finality and government overreaching--are implicated here. When Defendant pleaded only to UUW-possession, admitting that he possessed both the drugs and the gun, and was sentenced on that count--all without objection from the State--Defendant could reasonably expect that, because the State had nothing else to prove on the remaining count of possession, the matter had ended and the State would not pursue it. Moreover, the trial court forewarned the parties of its belief that Defendant could not be sentenced on both. And while the State may have been able to argue for imposing a sentence on possession instead of UUW-possession had those convictions occurred at the same time, once the trial court sentenced Defendant on the UUW-possession count, that argument would have been futile at any future sentencing on the possession count. See State ex rel. Williams v. Wilson, 63 S.W.3d 650, 652 (Mo. banc 2002) (“Once judgment and sentencing occur in a criminal proceeding, the trial court has exhausted its jurisdiction and can take no further action except when otherwise expressly authorized by statute or rule”). The State’s insistence on pursuing conviction on the possession count under these circumstances is overreaching. Defendant should not have to endure the embarrassment, anxiety, and expense of continued prosecution in this case any more than he should have to endure those effects of a subsequent prosecution of that offense.

In these particular circumstances, we conclude that double jeopardy precluded the State from continuing prosecuting the possession count after Defendant pleaded guilty to and was sentenced, without objection from the State, to the greater offense of UUW-possession.

Point I is denied.

V. Conclusion

For the foregoing reasons, we conclude it was not error for the trial court to grant Defendant’s motion to dismiss Count I prior to sentencing on that count. The judgment is affirmed.

_______________________________ Colleen Dolan, P.J.

Robert M. Clayton III, J., concur. Kelly C. Broniec, J., concur.